Plain Language

Resolutions

By George Hathaway and Karen Willard

he English-speaking international

legal-writing community, composedof representatives from the United

States, Canada, England, and Australia, ispresently trying to define the term "plainEnglish "Janice Redish, a former Director ofthe Document Design Center of the Amer-ican Institutes for Research in Washington,D.C., defines the term as follows:

We have always defined plain English anddocument design, not as a single set of styleguidelines, but as a process that results in adocument that works for its users. Plain Eng-lish has always meant a process of planningthat includes understanding:

* what all the interested groups within theorganization want to achieve

* who all the users are (inside and outsidethe organization)* what tasks users need to accomplish

* how different people are going to use thedocument(s)

* how the document fits into the system

Plain English has always meant developingdocuments that meet the needs of the users,deciding what type of document is appropri-ate for the users and the situation, selectingguidelinesfor organization, style, layout, andgraphics that are appropriate to the usersand the situation, and testing iteratively withusers, revising with users until we know thatwe have made good choices.

This definition includes so-called text-based, reader-oriented, and collaborative

"Plain Language" is a regular feature of the Mich-igan Bar Journal, edited by Joseph Kimble for theState Bar's Plain English Committee. The assistanteditor is George Hathaway, chair of the Committee.The Committee seeks to improve the clarity of legalwriting and the public opinion of lawyers by elimi-nating legalese. Want to contribute a plain Englisharticle? Contact Prof. Kimble at Thomas Cooley LawSchool, P.O. Box 13038, Lansing, MI 48901.

approaches. A text-based approach concen-trates on what is on the page-words andsentences, and their organization and de-sign. A reader-oriented approach tests thedocument by asking readers about theirunderstanding and impression of the text.A collaborative approach lets readers helpwrite the text.

This definition and its approaches maybe useful for a legal-writing consultant indeveloping a major document for a client.But for many individual documents, youwill never get the attention of a practicinglawyer, legal assistant, or legal secretary ifyou ask them to use "a process that resultsin a document that works for its users." To

Categories Specific Types of Documents

persuade legal personnel to routinely writein a "clear, user-friendly" way, you mustoffer "clear, user-friendly" advice, with someconcrete examples.

That's why our committee has definedbasic legalese as the unnecessary words thatlawyers use that are different from the wordsthe general public uses: 1) formalisms suchas Now Comes, 2) archaic words such ashereby, 3) redundancies such as any and all,and 4) Latin words such as per curiam thatare not terms of art. Eliminating legaleseis an important, liberating first step towardclearer and more acceptable legal writing.

To make any progress, you must applythe definition of legalese to specific legal

Written By

MICHIGAN BAR JOURNAL

Laws 1. resolutions Legislative Service Bureau:Legislative Research Division

2. statutes Legislative Service Bureau: Legal Division

3. executive orders Governor's Executive Office: Legal Division

4. rules Legislative Service Bureau: Legal Editing Division

5. jury instructions Michigan Supreme Court Committee onStandard Civil Jury Instructions

6. judicial opinions Michigan Supreme Court and Court of Appeals

Lawsuits 7. complaints, answers, Michigan Trial Lawyers Association andmotions, orders Michigan Defense Trial Counsel

8. briefs

9. affidavits Michigan Association of LegalSupport Professionals

Contracts 10. consumer finance contracts banks

11. insurance contracts insurance companies

12. construction, goods, services, Michigan Association of Home Builders,and employment contracts Michigan Automotive Dealers Association,

United Auto Workers, and others

13. investment contracts investment firms

Real Estate 14. listing and purchase Michigan Association of Realtors: 50 local boardsagreements and 3,000 companies

15. deeds and easements members of Real Property Law Sectionof State Bar

16. leases

17. land contracts First American Title Insurance Company

18. notes and mortgages Federal National Mortgage AssociationEstate Planning 19. durable powers of attorney banks and members of Estate Planning

Section of State Bar

20. wills and trusts

JULY 1995

PLAIN LANGUAGE

documents. That is why we have catego-rized legal writing as shown below.

Legal WritingIn our analysis of legal writing in Michi-

gan, we have separated legal writing intofive categories (laws, lawsuits, contracts,real estate, and estate planning) and 20 spe-cific types of documents, as shown in thetable on the previous page.

We are now going to ask readers to com-ment informally on some of these docu-ments. (We are not aiming for scientificaccuracy.) We will start with the first cat-egory, laws, which consists of legislativeresolutions and statutes, executive ordersand administrative rules, and jury instruc-tions and judicial opinions. We begin withthe shortest and easiest document-reso-lutions. We will first determine a) what thewriter wants to achieve, b) who the readersare, and c) how the reader will use the writ-ing. We will then ask the readers 1) fortheir understanding of the document, 2) fortheir impression of the way the documentis written, and 3) whether they would pre-fer a legalese or non-legalese version.

ResolutionsResolutions are passed by the house and

senate to honor a particular person or event,or to express a position on an issue. Reso-lutions use a standard format that includesthe archaic Whereas.

The archaic Whereas is high-profile le-galese. The question then becomes, Whydoesn't the Legislature eliminate Whereasfrom resolutions? The reason given is thatthe resolutions are written for the legisla-tors' constituents, and the constituents aresupposedly impressed by the flowery lan-guage. This, however, appears inconsistent.People criticize lawyers every day for usinglegalese, but do these same people wantthe legalese in a resolution? Furthermore,if you eliminate high-profile legalese suchas Whereas from resolutions, do you thenhave a better chance of eliminating legalesefrom other legal documents? To answerthese questions, we first determined:

* What does the writer of the resolutionwant to achieve?-To recognize achieve-ment by an individual or group, or to senda message to another unit of government.

* Who are the readers?-The peoplewho receive the resolutions, and the gen-eral public as well, because many of theseresolutions are framed and hung on walls.

* How will the readers use the resolu-tion?-The people who receive the reso-

Figure 1

lution will often display it as a recognitionof achievement, or the general public willread it to learn what position the Legislatureis taking on a particular issue.

We then asked ten members of the gen-eral public about the resolution shown inFigure 1:

1) Can you understand the following res-olution? (We did not test comprehensionon before-and-after versions.)

2) What is your impression of the waythe resolution is written?

3) Would you prefer the resolution withWhereas or without Whereas?

All ten replied that they could under-stand the resolution, but only four said thatthe resolution was written in a satisfactoryway. Nine preferred the resolution with-out Whereas. The one who preferred theresolution with Whereas did so because itsounded more official. The other nine com-mented as follows:

* It is easier to read if the whereas iseliminated... I feel like I have to catch mybreath before each whereas.

e Be user-friendly... go without whereasand be it resolved.

" The whereas adds nothing." Not personalized... language is too

stiff and formal... The language of Shake-speare is not used in today's society. Aswritten, I imagined a town crier ringing hisbell as he read the proclamation. Withoutthe legalese, the resolution is focusing onthe individual or event being recognized.

* The use of whereas is often a clue thatsuperfluous information, complexity, andawkward phrases will follow in an attemptto bolster credibility or influence.

RealityLast year, state Representative Karen

Willard took a straw poll of constituentsin her district as to whether they preferredthe plain language or the traditional form ofresolutions. People overwhelmingly repliedthat resolutions should be easy to read andunderstand. However, when she introduceda resolution written in plain English (withno Whereas), the resolution was blockedon the house floor and never passed. Thiswas a resolution (urging military-base com-missaries to be open to all disabled veter-ans, not just those with 100% disabilities)that had passed out of committee unani-mously with bipartisan support.

George Hathaway is a Senior Real Estate Attorneyat the Detroit Edison Company and the chairof the Plain English Committee of the State Barof Michigan.

Karen Willard is a member of the Michigan Houseof Representatives (82nd District), a former legalwriting instructor for the University of Detroit Schoolof Law, and a leader of a movement within the Michi-gan Legislature to remove legalese such as Whereasfrom resolutions and other legislative documents.

MICHIGAN BAR JOURNAL

Senate Resolution No. 99.A resolution honoring Kyle Gibbs.Whereas, It is a privilege to congratulate Kyle David Gibbs for achieving the rank of

Eagle Scout. This accomplishment marks Kyle as a young man who has set high goals for him-self and has worked hard to reach them. We are pleased to have this opportunity to ac-knowledge his efforts and to thank him for his service to his community and our state; and

Whereas, Kyle Gibbs is a sophomore at New Lothrop High School where he is an excel-lent student and a member of the band and the baseball team. He has been in scouts for sev-eral years, enjoying camping experiences, earning a number of badges for his mastery of as-signments and demonstrating his leadership within Troop 123. For his Eagle Scout project, hechose to make fifty handicap parking signs for use during the Blueberry Festival in Mon-trose. The signs, constructed according to legal specifications, are portable and will be usedyear after year in order to ensure that handicapped visitors or tourists will be able to partici-pate more easily and enjoy festival activities; and

Whereas, For a sixteen-year-old to complete such a task means that this outstandingyoung man volunteered many hours which might have otherwise been dedicated to sportsor hobbies like collecting comic books. Kyle Gibbs unselfishly sacrificed personal leisuretime to make a contribution to his community. He is indeed worthy of special recognition andthe prestigious Eagle Scout Badge; now, therefore, be it

Resolved by the Senate, That a unanimous accolade of praise and tribute be accordedKyle David Gibbs as he is awarded Eagle Scout rank on May 7, 1995; and be it further

Resolved, That a copy of this resolution be transmitted to Kyle as evidence of our esteem.

JULY 1995

PLAIN LANGUAGE

ConclusionGovernment should communicate with

its citizens in clear language, not in lan-guage that has been criticized by every Eng-lish teacher and writing instructor fromthird grade through law school. Legal-writ-ing books and instructors teach lawyersto eliminate the archaic Whereas. Further-more, the general public prefers resolutionswithout the word Whereas. Yet the writ-ers of resolutions refuse to eliminate it.And if the writers refuse to eliminate justone word, no wonder it is so hard to per-suade lawyers to improve the clarity oflegal writing.1

In the future we suggest the followinguser-friendly format for resolutions:

[Statements concerning the honoree.]

Therefore, the Senate/House resolves to unan-imously honor for - , and tosend __ a copy of this resolution. N

Footnote1. A second example is the phrase You are

hereby commanded, which was recently readon TV from a federal subpoena concerningthe recent bombing in Oklahoma City. Thephrase you are hereby commanded sounds asthough it was issued from the Star Cham-ber. A clear, direct You are ordered is muchmore appropriate. Another example is theYea/Nay voting designation of the U.S. Con-gress. Why not a clear, direct Yes or No?

JULYT 199 MI..HI.AN..............MICHIGAN BAR JOURNALJULY 1995